41.202
Suggesting an interference.

(a)
Applicant. An applicant, including a reissue
applicant, may suggest an interference with another application or a
patent. The suggestion must:

(1)
Provide sufficient information to identify the
application or patent with which the applicant seeks an
interference,

(2)
Identify all claims the applicant believes
interfere, propose one or more counts, and show how the claims
correspond to one or more counts,

(3)
For each count, provide a claim chart comparing
at least one claim of each party corresponding to the count and
show why the claims interfere within the meaning of §
41.203(a),

(4)
Explain in detail why the applicant will
prevail on priority,

(5)
If a claim has been added or amended to provoke
an interference, provide a claim chart showing the written
description for each claim in the applicant’s specification,
and

(6)
For each constructive reduction to practice for
which the applicant wishes to be accorded benefit, provide a
chart showing where the disclosure provides a constructive
reduction to practice within the scope of the interfering
subject matter.

(b)
Patentee. A patentee cannot suggest an interference
under this section but may, to the extent permitted under §
1.291 of this title, alert the examiner of an
application claiming interfering subject matter to the possibility of
an interference.

(c)
Examiner. An examiner may require an applicant to
add a claim to provoke an interference. Failure to satisfy the
requirement within a period (not less than one month) the examiner
sets will operate as a concession of priority for the subject matter
of the claim. If the interference would be with a patent, the
applicant must also comply with paragraphs (a)(2) through (a)(6) of
this section. The claim the examiner proposes to have added must,
apart from the question of priority under 35 U.S.C.
102(g):

(1)
Be patentable to the applicant, and

(2)
Be drawn to patentable subject matter claimed
by another applicant or patentee.

(d)
Requirement to show priority under 35 U.S.C.
102(g).(1) When an applicant has an earliest constructive
reduction to practice that is later than the apparent earliest
constructive reduction to practice for a patent or published
application claiming interfering subject matter, the applicant must
show why it would prevail on priority.

(2)
If an applicant fails to show priority under
paragraph (d)(1) of this section, an administrative patent judge
may nevertheless declare an interference to place the applicant
under an order to show cause why judgment should not be entered
against the applicant on priority. New evidence in support of
priority will not be admitted except on a showing of good cause.
The Board may authorize the filing of motions to redefine the
interfering subject matter or to change the benefit accorded to
the parties.

(e)
Sufficiency of showing. (1) A showing of priority
under this section is not sufficient unless it would, if unrebutted,
support a determination of priority in favor of the party making the
showing.

(2)
When testimony or production necessary to show
priority is not available without authorization under §
41.150(c) or
§ 41.156(a),
the showing shall include:

(i)
Any necessary interrogatory, request for
admission, request for production, or deposition request,
and

(ii)
A detailed proffer of what the response
to the interrogatory or request would be expected to be
and an explanation of the relevance of the response to the
question of priority.